SOPA may not pass. What it tells you about the policymakers outlook on how to defend against piracy and copyright infringement is extremely scary. I don't think I have ever read proposed legislation that was such a clear backward looking move that fundamentally ignores how the web is reshaping our lives. Forget censorship and job creation for a moment: it's unfair, badly written and ignores the sense of history.

From Wikipedia for background:

The bill would allow the U.S. Department of Justice (DOJ), as well as copyright holders, to seek court orders against websites accused of enabling or facilitating copyright infringement. Depending on who requests the court orders, the actions could include barring online advertising networks and payment facilitators such as PayPal from doing business with the infringing website; barring search engines from linking to such sites and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyprotected content a felony. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement.[9]

The debate has been posed in the usual pro/anti way with on the one hand supporters saying "surely you agree copyright protection and the law matters" and on the other hand critics saying "you want to censor us; we're not China or Iran". And both sides hold a banner saying "let's protect American jobs" and surely no-one can disagree with this.

I kept re-writing this post to try and make it comprehensive, but every time I end up writing a Paul Graham lenght essay. So let me write you a short one instead. Five reasons why this legislation is off target. I am simplifying but before you think I am fear-mongering, just look at the number of lawsuits that even DMCA has already generated. This law would be a wonderful way for defensive incumbents to lock everyone into legal battles for years.

The main thrust of the law seems to be "pushing enforcement downstream", in other words (a) if you infringe, you're guilty, (b) if you facilitate infringement you're guilty (c) let me give you some immunity from prosecution if you're helping. ISP's and payment processing companies are enlisted as tools in this battle, with a simple case: I might get sued for aiding infringement, let me shut off your support or redirect your DNS to be safe. This incredibly one sided view of the world is bound to fail and push piracy deeper underground. Want to automate DNS cloaking for the masses ? Keep going...

2. SOPA is protecting the wrong people

When you think copyright infringement, you think of the artists whose work is being pillaged. A lot of artists are rightfully angry about what the radical evolution of digital media has meant for their livelihood. But the way I read this bill, it is mainly meant to protect "content owners". Take major labels as an example. Full of A&R people who are passionate about music and artists, but also technology luddites who take incredibly high margins and also will happily screw their artists when given half a chance. Two examples:

(a) Know why they take equity in music startups through the corporate parent ? So they don't have to share the proceeds with the artists (it falls outside of royalty contracts). Ha !

(b) Collection agencies often do not redistribute anything to small artists since the collections are "too small" to be accounted for. Guess who owns and runs the collection agencies.

Media companies know a thing or two about producing awesome content, managing artists, putting on great shows and tours. It does not mean their business, today dominated by corporate animals who milk catalog and are experts at suing people, do not need radical change.

3. SOPA goes against the sense of history: we live in the age of platforms

We live in an "age of platforms" where users are both publishers and consumers of content and meta or hyper-distribution are a force. Every value chain gets disaggregated into platforms that are incredibly fluid and efficient. In the process, how you publish, market and monetize content is being fundamentally reinvented. It's admittedly a painful transition for the industries being reinvented, and it's normal that the legal framework lags behind both technological innovation (say video sharing) and what society considers acceptable (say what constitutes privacy).

Technology disintermediates industries -- this one is no exception. In the process of collapsing a value chain, it should really be bringing artists closer to consumers and allowing lower prices for end consumers AND more profits to artists. The future of music has a name, it's called SoundCloud, not Universal. Mark Suster has a good post on what may happen in TV if you like the broadcast flavour of this story.

SOPA is luddite legislation.

4. Solving Piracy requires a collaborative solution

It's easy to take a tough stance and point at all sorts of infringing websites. Take all of MP3.com as an example to continue with the music analogy. Industrial ripoff that has to be stopped. Let's remember though that piracy was largely aided by the music industry who remain mostly technology adverse (at the leadership level) and has implemented wave after wave of technology solutions that either did not work for consumers (geo-licensing) or screwed them (The Sony rootkit lawsuits). Heck, I recently moved to the US and had to buy a new TV, a new DVD player, a new converter for my old gear. Needless to say I bought a popcorn box and recreated the collection I already own on MuTorrent when I got frustrated enough. I had not had a torrent client on my machine for years.

The music industry developed a core expertise in suing people instead of a core expertise in the efficient generation, distribution and monetization of digital content.

At DailyMotion we started out with a product designed by Ben and Olivier to share their own videos. People started sharing just about everything including copyrighted content. We invested millions in anti-piracy solutions (from INA and others). One issue we kept encountering was the lack of willingness by the content owners to collaborate in any way. They wanted to keep the option of suing us open and did not want to be seen to be engaging. If we had reliable hash databases of content we could run systematic algorithms to find and take down protected content. But none of that: startups were left to create the indexes and databases themselves whilst large media company lawyers prepared their court cases to defend their shrinking pies.

If this was the banking industry, they would have set up a large common platform for access to metadata and content hashes that all players could have queried to find and track infringing content. But no, what we go instead was lobbying Congress and effing UltraViolet. Seriously.

Is it any wonder that Spotify, Soundcloud and Pirate Bay are the ones moving the ball forward ? Is it not ironic that Apple (remember the rip and burn ads ?) is now owning the music industry's downstream business ? How pathetic.

5. SOPA is America centric, the Web is global

There is a long tradition in American foreign affairs of defending the interests of America first and foremost anywhere in the world, with a notion that America has a right to defend its interests wherever they may be at risk almost regardless of what local interests might be. That's actually served America well and I would argue the world, given the benevolent nature generally associated with American ideals (OK, there are too many exceptions but I am a pragmatist and not an idealist when it comes to foreign policy). With the Web, it's different though. It's global by nature and everyone relies on America's web infrastructure. The proposed legislation is akin to giving a globally applicable set of legal tools to American companies who want to go after international businesses.

Child of SOPA ?

In my view the supporters of SOPA are not dumb. They loaded the boat with everything they could think of so the watered down versions would achieve their objectives. We need to remain vigilant and make sure these laws are not design to protect the wrong status quo or kill Net Neutrality through the back door.

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